Offer to settle question

[blendedinsanity]

With the case conference looming (haven't heard back from the trial coordinator about the adjournment) my partner sent an offer to settle to his ex that basically gave in on the section 7 issue but maintained the joint custody. It had without prejudice on it and was signed by him - that makes it a valid offer to settle correct?

In return she sent him the longest email yet where she added insane things like $5000 for private family ski lessons, a trip to Australia to visit HER family and I'm not even kidding she listed out that she wanted everything that goes with the catholic school uniform to be included and she listed $300 for UNDERWEAR, $100 for belts, $600 for shoes - it just went on and on. We added the amount up and basically it was 27k that he would be paying. And she maintained the sole custody which he's not giving in on.

In the email she says this is only for settlement discussions and cannot be used in court - is that correct? I'm asking because she states that the reason she's going for sole custody is because she will say what she wants to her son and she doesn't care if he doesn't like it. She also says she doesn't care what the judge says because it's her son and the judge can shove his court order. If it becomes necessary and the judge is on the fence he wants to show that the order is necessary.

Thanks!

[HappyMomma]

I'd say thanks for the great email and include it in your materials. What an idiot.

[blinkandimgone]

This is a good blog and explanation of "without prejudice", what's protected and what is not - including a reply NOT marked "without prejudice":

JP Boyd on Family Law: The Blog: What's "Without Prejudice" and What's Not

Subsequent letters not marked "without prejudice"

Interestingly, the protected status of "without prejudice" settlement proposals also applies to letters written in reply to such proposals that aren't marked "without prejudice." Halsbury's Laws of England says this at volume 15, paragraph 728 of the third edition:

Where the privilege exists, it covers not only the particular letter itself, but also all subsequent parts of the same correspondence on both sides, notwithstanding that they are not expressed to be “without prejudice," unless there is a clear break in the chain of correspondence to show that the ensuing letters are open. Moreover, where a letter offering terms, but not stated to be “without prejudice” is followed by another saying that the communications between the parties are to be “without prejudice” the former letter is protected.

Summary

1. "Without prejudice" letters allow people to discuss settlement proposals without worrying that their proposals will be held against them later.
2. The phrase "without prejudice" only protects settlement proposals. Marking your laundry list or any other communication "without prejudice" isn't going to stop the document from being used in court.
3. The parts of a "without prejudice" letter that don't talk about settlement can be used in court, as long as the parts which do talk about settlement are blocked out.
4. If a "without prejudice" letter is going to be used to argue costs down the road, the letter needs to say so or it can't be used to argue costs.

[blendedinsanity]

Thank you!!!

[OrleansLawyer]

If it becomes necessary and the judge is on the fence he wants to show that the order is necessary.

A case conference brief is not evidence. If you believe the e-mail will assist the judge conducting the conference, attach your offer to settle as Tab X and the reply as Tab X+1.

Blink's response is correct.

[blendedinsanity]

Orleans - I meant use it later like if this goes to trial. The way things are going it appears that's where it's headed.

[sahibjee]

if she wrote stuff like that then your partner may not even need to attach the letter as her behavior and demands are likely to manifest her thoughts int front of the judge anyways.